Farid el Diwany v Solicitors Regulation Authority

A final appellate determination may be reopened under CPR Part 52.30 only in truly exceptional circumstances. The earlier proceedings must have been critically undermined and there must be a powerful probability of significant injustice. A judge’s failure to condemn racist or other offensive conduct that is not material to the issues does not establish actual or apparent bias.

The objective observer will ordinarily accept a judge’s cogent statement of their own knowledge unless objective facts give real reason to doubt it. Membership of the same chambers, without more, will not ordinarily establish apparent bias. Persistent attempts to relitigate final decisions may justify a general civil restraint order where lesser restraint is insufficient.

The appellant made three applications under CPR Part 52.30. He sought to reopen refusals of permission to appeal from Saini J’s dismissal of his appeal against a Solicitors’ Disciplinary Tribunal decision to strike him off, and from Sharp J’s strike-out of his defamation claim.

He alleged actual or apparent bias by judges who had dealt with the earlier proceedings. His allegations relied principally on their alleged failure to condemn racist material published about him and on professional associations with counsel involved in the earlier defamation proceedings. He also sought to challenge the merits of the disciplinary appeal and the relevance of his Norwegian convictions.

The common issues were whether the strict conditions for reopening final appeals were met, whether the alleged circumstances established apparent bias, and whether a general civil restraint order should be imposed.

1. The three applications were dismissed and certified as totally without merit. None met the strict and cumulative conditions in CPR Part 52.30. Reopening is reserved for truly exceptional cases in which the integrity of the earlier proceedings has been critically undermined and there is a powerful probability of significant injustice. Warby LJ had addressed the essential issues raised by the application for permission to appeal and had reached the correct conclusion. There was no defect capable of corrupting the process.

2. The allegations of apparent bias were untenable. Applying Porter v Magill, the court considered all relevant circumstances through the eyes of a fair-minded and informed observer. A judge’s failure to condemn racist language or other inappropriate conduct which does not require decision cannot establish bias. Judges must decide the issues before them; they are not obliged to comment on every matter raised by a litigant.

3. The alleged association between Warby LJ and counsel who had appeared in the earlier defamation claim did not establish bias. Membership of the same chambers does not ordinarily create a sound objection. In any event, Warby LJ had no recollection of the earlier case. In the absence of objective reason to doubt that statement, it was a complete answer to the allegation.

4. The merits complaints did not approach the CPR Part 52.30 threshold. Saini J had reviewed, rather than reheard, the disciplinary decision. The convictions and the failure to disclose them were undisputed. The tribunal had been entitled to rely on them, to find no exceptional basis for going behind them, and to impose striking off. The provocation relied on did not excuse the conduct or the reporting failure.

5. A general civil restraint order was imposed for three years. The appellant had persistently issued totally without merit claims and applications, repeatedly sought to reopen final decisions, and continued despite existing extended civil restraint orders. Those orders were insufficient to protect litigants and the court’s finite resources. He could apply, without prior permission, to set aside the restraint element of the order.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 888, the court dismissed the applications to reopen prior refusals of permission to appeal, certified each as totally without merit, and imposed a three-year general civil restraint order.
• High Court (Administrative Court): Saini J dismissed the appellant’s appeal from the Solicitors’ Disciplinary Tribunal’s decision to strike him off in [2021] EWHC 275 (Admin). Permission to appeal was later refused by Warby LJ.
• High Court (Queen’s Bench Division): Sharp J struck out the appellant’s defamation claim in [2011] EWHC 2077 (QB). Permission to appeal was refused by Hooper LJ, followed by unsuccessful applications to reopen.